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Criminal Law

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I have seen nothing but the citation I was issued. On the…

I have seen nothing but...

I have seen nothing but the citation I was issued. On the citation it only says no permit in the offense box.Shouldnt there be something somewhere that states what code and section I am being charged with:Example: In violation of Sec 43.1-a of the dallas transportation code ????

Due process requires fair notice of the charges. Texas Code of Criminal Procedure Section 1.05 states that an accused in a criminal case shall have "the right to demand the nature and cause of the accusation against him, and to have a copy thereof." Section 15.05, pertaining to the request for an arrest warrant, states that the complaint must show that the accused has committed "some offense against the laws of the State...."

Checking a box on a citation may or may not provide sufficient information, depending upon the context of the checkbox system on the form and whether it is explained somehow on the citation. I don't believe it would be unreasonable for you to demand, pursuant to section 1.05, the nature and cause of the accusation against you. Logically, how can you defend against a crime that you cannot define? Simply stated, a criminal offense has certain elements that have to be proven. You can defend yourself by attempting to create reasonable doubt that one or more of those elements exist. But you have to know what they are, and unless the state tells you what the statute or ordinance is, you aren't in a position to defend yourself. It's basic Constitutional due process (or "due course" as they say in Texas).

I’d ask the prosecutor. The prosecution is responsible for selecting and filing charges. Just ask for the code and section number. Then confirm it with the court.

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Customer reply replied 1 year ago

ok,I have court again tomorrow. Pre-Trial Hearing. But I still have not received any Discovery from the Prosecution. How do I proceed tomorrow? How do I get the judge to compell prosecution to deliver requested discovery?

If I recall correctly, you've already made requests for discovery both in writing and by phone, and possibly even in person at the court or district attorney's office? As long as there is a record of your request(s), you don't need to ask again. The primary concern is:

You have the right to be informed of the charges. Article I, Section 10 of the Texas Constitution and Article 1.05 of the Texas Code of Criminal Procedure state that you have "the right to demand the nature and cause of the accusation" against you. Long standing case law has held that an accused "be given information upon which he may prepare his defense.(Citation.) This information, of course, must come from the face of the charging instrument." (Evans vs. State, 623 S.W.2d 924, 925-926 (1981).) Your citation does not sound like it complies. Basically you are entitled to fair notice of the charges against you so you can prepare a defense.

Both the prosecutor and the court should be well aware of this. So in court, I would do the following:

1. See if the prosecutor has anything for you; this could be discovery, or a complaint or information may have been prepared setting forth the charges.

2. If not, advise the court that you have not received adequate notice of the charge against you and are renewing your request for (a) specific charges, and (b) any discovery to which you may be entitled.

3. You may also request that the court order the prosecution to prepare an information, if the charge is a misdemeanor.

4. Make sure that the record is clear that you are objecting to a defect in the charging document (the citation). If you don't object on the record, you are deemed to have waived the defect.

If push came to shove, Article 27.02 of the TCCP states you may file an exception or a motion to set aside an information for some matter of form or substance.

I can't see this as being a big obstacle for the prosecution. Just don't discuss anything with anyone. Don't talk about the facts of the case or your ideas about it. If you have a conversation with the prosecutor, make sure that you put on the record what was discussed and what, if any, promises were made.

Good luck!

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Customer reply replied 1 year ago

But I still have not received Discovery. How do I get it if they do not deliver after the request is made?

If nothing is provided tomorrow, ask the court to do two things: 1 - order the prosecution to provide you with a list of discoverable items (you have to establish that they have something to give you; they should be able to do it from the contents of their file in court), and 2 - set a compliance date. And request that they provide you with adequate notice of the charges.

It may be the only discovery would be the name of the officer who issued the citation. But there should be a written report in support of the citation that you would be entitled to receive, even if it's just a few lines on the back of the prosecution copy of the citation.

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Customer reply replied 1 year ago

I know the officer took pictures. I watched her take them. I requested copies of the pictures, a copy of the incident report, a copy of officers notes, a copy of the front and back of the citation (in case officer made notes) and have not received any of it.

Ok, I have court tomorrow. It took and act of god and a bit of time before a judge but I finally got my discovery. Now I have copies of the current law that I intent to present to the court. While in court do I just refer to the law or do I need to have copies for the judge and prosecution? Also I got 3 photos in my discovery. If I want to present them photos as evidence do I need to make extra copies or do I just enter the one copy as exibit ??? Also I am concerned with Best Evidence rule. How would I get around that if the prosecution objects with it on the photos?

1. Current law. What are you presenting? Texas statutes, or local ordinances? If you're presenting municipal/local ordinances, the court can take judicial notice under Texas Rules of Evidence Rule 204. Otherwise the court will follow the law as stated in the Texas statutes. Copies for the parties is a courtesy that they will appreciate.

2. Photos are admissible upon evidence that the photo is a "fair and accurate representation" of what is depicted. Yes, provide the evidentiary copy to the court and a copy to the prosecution.

3. The Best Evidence rule (Rule 1001) simply says that in order to prove the contents of a document, the original must be presented. However, the exception to the rule (Rule 1003) states that a duplicate is admissible to the same extent as an original UNLESS (1) it's authenticity is in question, or (2) unfairness would result. If the photos were provided to you in discovery by the prosecution I don't see how they could allege that they aren't authentic, and I do not see any issues of unfairness. They have the same photos that you do.

Good luck.

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Customer reply replied 1 year ago

I did end up winning my case today. But Every picture I tried to admit into evidence the prosecution objected on Foundation and the judge sustained every time.What is the proper way to admit evidence?

The foundation for admitting a photograph is evidence that the photo is a fair and accurate representation of what is pictured in the photo. (See my previous answer.) Like this:

1. Offer the item for identification: "Your honor I have a 4 x 6 color photograph of a 2017 Ford Mustang parked at the curb in front of***** May this item be marked as Defense Exhibit A for identification?"

2. Testify to the foundation: "I was present when this photograph was taken and it is a fair and accurate representation of the scene."

3. Testify to its relevance: "This photo demonstrates that the vehicle was legally parked at the time of the detention, contrary to the officer's testimony."

4. Move for admission into evidence: "May Defense Exhibit A be admitted into evidence at this time?"

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DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).